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POGUE v. CALVO

United States District Court, N.D. California


February 24, 2004.

LEON HEINZ POGUE, Plaintiff(s),
v.
DONALD CALVO, et al., Defendant(s)

The opinion of the court was delivered by: VAUGHN WALKER, District Judge

ORDER GRANTING MOTION TO DISMISS
Plaintiff, a prisoner at California State Prison, Solano ("CSP — Solano"), filed a pro se First Amended Complaint ("FAC") for damages under 42 U.S.C. § 1983 alleging that, while incarcerated at San Quentin State Prison ("SQSP"), prison officials were deliberately indifferent to his medical needs and safety, and that they violated his right to due process by failing to process his administrative appeals. Per order filed on September 12, 2003, the court found that plaintiff's allegations that SQSP Drs. Donald Calvo, Foster and Martin, and SQSP MTA Schneider, were deliberately indifferent to his serious medical needs when they ignored for three months his pleas to treat his back injury stated a cognizable claim for damages against these defendants, when liberally construed, and Page 2 ordered the United States Marshal to serve them.*fn1 Defendants now move for dismissal under Rule 12(b) of the Federal Rules of Civil Procedure on the ground that plaintiff did not exhaust available administrative remedies under 42 U.S.C. § 1997e(a) before he filed suit. Plaintiff has filed an opposition and defendants have filed a reply. (Plaintiff has also filed a response to the reply.)

DISCUSSION

  The Prison Litigation Reform Act of 1995 amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Although once within the discretion of the district court, exhaustion in prisoner cases covered by § 1997e(a) is now mandatory. Porter v. Nussle, 534 U.S. 516. 524 (2002). All available remedies must now be exhausted; those remedies "need not meet federal standards, nor must they be `plain, speedy, and effective." Id (citation omitted). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id; Booth v. Churner, 532 U.S. 731, 741 (2001). Similarly, exhaustion is a prerequisite to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 US at 532.

  The State of California provides its prisoners the right to appeal administratively "any departmental decision, action, condition or policy perceived Page 3 by those individuals as adversely affecting their welfare." Cal Code Regs tit 15, § 3084.1(a). It also provides them the right to file appeals alleging misconduct by correctional officers. Id. § 3084.1(e). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections. Barry v. Ratelle, 985 F. Supp. 1235, 1237 (SD Cal. 1997) (citing Cal Code Regs tit 15, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). Id. at 1237-38.

  Nonexhaustion under § 1997e(a) is an affirmative defense. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir 2003). It should be treated as a matter of abatement and brought in an "unenumerated Rule 12(b) motion rather than [in] a motion for summary judgment." Id (citations omitted). In deciding a motion to dismiss for failure to exhaust administrative remedies under § 1997e(a), the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. If the court concludes that the prisoner has not exhausted California's prison administrative process, the proper remedy is dismissal without prejudice. Id. at 1120.

  Here, defendants correctly raise nonexhaustion in an unenumerated motion to dismiss and argue that plaintiff's prisoner action should be dismissed for failure to satisfy the exhaustion requirement because plaintiffs administrative appeals: (1) were rejected at the final Director's level as untimely; and (2) did not identify all defendants.

  The record shows that plaintiffs operative administrative appeals (SQ 01-3720 and SQ 02-606) were rejected at the highest level because they were not Page 4 timely filed. As a result, this case "turns not on whether exhaustion is required, the answer to which is well settled, but on what exhaustion requires." Thomas v Woolum, 337 F.3d 720, 722 (6th Cir 2003) (emphasis in original).

  The Ninth Circuit has not addressed the effect of a rejection of a prisoner administrative appeal as untimely, and the courts that have considered the issue have reached varying conclusions. Compare Thomas, 337 F.3d at 727-33 (holding that claims included in prisoner appeal are exhausted even if prison denies them as untimely filed), with Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir 2002) (holding that untimely appeal does not satisfy exhaustion requirement and bars § 1983 claim), and Graham v. Perez, 121 F. Supp.2d 317 (SONY 2000) (holding that prisoner who allowed grievance procedure time limits to expire and who attempted to file late grievance, but was barred from doing so, could ask district court to waive exhaustion requirement upon showing of good cause). The issue was recently explored at length by the Sixth Circuit in Thomas, a decision that persuades this court. Thomas explained why the rejection of a prisoner administrative appeal as untimely satisfied the exhaustion requirement:

[The prisoner] had quite literally exhausted his ability to go any further within the internal prison system. There were no more avenues to travel within the state prison system. If [the prisoner] had failed to file, the state prison system would never have had any opportunity to review the claim. However, by filing, [the prisoner] gave the state an opportunity to hear the claim and, by appealing, [the prisoner] gave the state the opportunity to reconsider its decision. [The prisoner] received the benefit of the potential that the state would near his grievance by waiving the procedural guidelines, which the state could have done if it wanted to avoid federal court. The state received the benefit of dealing with the case internally if it so desired.
337 F.3d at 727. The state cannot strip the federal courts of their power to grant relief under § 1983 by failing to grant relief on the merits or by choosing not to grant relief because of procedural deficiencies (such as untimeliness) in the Page 5 prisoner's appeal. See id. at 733; see also Rivera v. Hamlet, No 03-0962 SI (PR), 2003 WL 22846114, at **2-3 (ND Cal Nov 25, 2003) (adopting rationale of Thomas); Natividad v. McGrath, No C 03-2363 THE (PR), slip op at 3-4 (ND Cal Jan 13, 2004) (same).

  Like the Thomas court, this court believes a prisoner must actually file the appeal and get rejected as untimely; he cannot anticipate that the process will be futile and bypass it. Accord Harper v. Jenkin, 179 F.3d 1311, 1312 (11th Cir 1999) (administrative remedies not exhausted where prisoner's initial grievance was denied as untimely and prisoner chose not to appeal further because he contended appeal would be futile). But once he has filed the appeal and has been rejected at the highest level available, he has done enough to exhaust administrative remedies, regardless of whether his appeal is granted or denied on the merits or rejected for a procedural reason. See Thomas, 337 F.3d at 733; Rivera, 2003WL 22846114 at *3; Natividad, slip op at 4.

  Here, plaintiff reached the termination point of the administrative appeal process when his two operative appeals were rejected at the director's level as untimely. He has satisfied § 1997e(a)'s exhaustion requirement as to the claims contained in those appeals. That begs the question of what claims were in those appeals.

  A review of the record makes clear that the only defendants mentioned in plaintiff's operative appeals were Schneider and Martin. Plaintiff's appeals do not mention Calvo or Foster or any facts indicating that medical personnel other than Schneider and Martin were deliberately indifferent to plaintiff's medical needs. Plaintiff did not give prison officials a fair opportunity to respond to his claims against Calvo and Foster. His claims against these defendants are not exhausted. See Thomas, 337 F.3d at 733-35; Rivera, 2003 WL 22846114 at *3. Page 6 Plaintiff has presented a mixed complaint, with two claims against two defendants exhausted and two claims against two other defendants not exhausted.*fn2

  The exhaustion requirement applies to all claims in a complaint; it is not enough to exhaust administrative remedies as to some claims and then use that exhaustion as a jurisdictional hook on which to hang unexhausted claims in a federal civil rights action. Plaintiffs instant prisoner action must be dismissed without prejudice because plaintiff did not exhaust all claims against all defendants before filing suit in federal court. See Graves v. Norris, 218 F.3d 884, 885 (8th Cir 2000) (dismissing without prejudice § 1983 prisoner action containing exhausted and unexhausted claims because plain language of § 1997e(a) requires that available administrative remedies be exhausted as to all of the claims brought in a prisoner action); Rivera v. Whitman, 161 F. Supp.2d 337, 340-43 (DNJ 2001) (dismissing without prejudice § 1983 prisoner action containing exhausted and unexhausted claims because plain language of § 1997e(a), as well as the legislative intent and policy interests behind it, compel a "total exhaustion" rule). Accord Terrell v. Brewer, 935 F.2d 1015, 1018-19 (9th Cir. 1990) (in prisoner action brought under Bivens where only a portion of the claims had been exhausted, "the proper remedy [was] dismissal without prejudice"). This total exhaustion rule best promotes the purposes of the exhaustion requirement, which include allowing a prison to take responsive action, filtering out frivolous cases, and creating administrative records. See Page 7 Porter v. Nussle, 534 U.S. 516, 523-25 (2002); Rivera, 2003 WL 22846114 at *3.

  It may well be that plaintiff's administrative appeal concerning Calvo and Foster will be rejected as untimely. However, plaintiff cannot declare the endeavor futile before he tries it and bypass the administrative appeal process. He must give prison officials the opportunity to decide whether they want to ignore the untimeliness problem and to reach the merits of the administrative appeal. The complaint will be dismissed without prejudice to plaintiff filing a new action after he exhausts his administrative remedies as to all claims against all defendants.

  CONCLUSION

  For the foregoing reasons, defendants' motion to dismiss for failure to exhaust administrative remedies (doc # 15) is GRANTED and the action is DISMISSED without prejudice.

  The clerk shall terminate all pending motions as moot (see, e.g., doc # 18), enter judgment in accordance with this order, and close the file.

  SO ORDERED.

  JUDGMENT IN A CIVIL CASE

  () Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

  (X) Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS SO ORDERED AND ADJUDGED that pursuant to an order granting defendant's motion to dismiss for failure to exhaust administrative remedies, judgment is hereby entered in favor of the defendant.


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